Legal Memorandum LI08: Double Jeopardy in Administrative Disciplinary Proceedings

THE APPLICATION OF DOUBLE JEOPARDY TO
ADMINISTRATIVE DISCIPLINARY PROCEEDINGS

Periodically, during an administrative disciplinary proceeding against a licensee, the licensee will claim that the administrative proceeding should be dismissed because it violates his or her constitutional right against double jeopardy. The licensee will argue that the revocation or suspension of his or her license in an administrative disciplinary proceeding where a licensee has also been convicted of a crime for certain conduct, conduct now the subject of the disciplinary hearing, constitutes double jeopardy. See, Maneri v. Department of State, 240 AD2d 748, 660 NYS2d 26 (2nd Dept. 1997). This is not a valid argument.

Double jeopardy is the "common-law and constitutional (Fifth Amendment) prohibition against a second prosecution after a first trial for the same offense. The evil sought to be avoided is double trial and double conviction, not necessarily double punishment." Black's Law Dictionary 440 (5th ed. 1979).

A licensees' protection against double jeopardy does not apply to an administrative agency's prosecution in an administrative disciplinary proceeding. The law is very clear that "the constitutional prohibitions against double jeopardy and double punishment do not prevent the legislature from enacting, and the executive from enforcing, civil as well as criminal sanctions for the same conduct." Matter of Barnes v. Tofany, 27 NY2d 74 (1970) (defendant's driver's license was suspended for 60 days in a civil administrative proceeding and was again suspended for 60 days in a subsequent criminal action).

Administrative proceedings commenced to revoke a licensee's license are not criminal prosecutions, they are civil actions and are considered remedial in nature. See, Waltier v. New York Police Dept., 856 F.Supp. 196 (SDNY 1994), aff'd, 52 F.3rd 311 (double jeopardy did not bar proceedings in which licensee's pistol permits were revoked, even though the events that led to the revocation proceedings were also the subject of criminal charges of which licensee was acquitted, because the revocation proceedings themselves did not constitute a criminal prosecution); Kahn v. Inspector General of U.S. Dept. of Health and Human Services, 848 F.Supp. 432 (SDNY 1994) (Secretary of Health and Human Services' five year statutory exclusion from Medicare program of podiatrist convicted of program-related state offense did not violate prohibition against double jeopardy, as exclusion was a remedial sanction, not a punitive one); Giudice v. Adduci, 176 AD2d 1175 (3rd Dept., 1991) (commencement of proceeding to revoke petitioner's chauffeur license because of petitioner's involvement in accident after petitioner was acquitted in a criminal proceeding regarding the same accident, did not constitute prohibition against double jeopardy); See also, Erdos v. NYS Dept. of Education, 105 AD2d 504 (3rd Dept., 1984), appeal denied, 64 NY2d 604; People v. Bulin, 142 Misc.2d 776 (NY D. Ct., 1989); Harvey-Cook v. Steel, 124 AD2d 709 (2nd Dept., 1986).

In Pathak v. DeBuono, 677 NYS2d 182 (3rd Dept. 1998), the petitioner, a physician, pled guilty to the criminal sale of a prescription for a controlled substance, for which he was sentenced to five years probation and the payment of a $15,000 fine. Based upon this conviction, the Board of Professional Medical Conduct ("Board") charged the petitioner with professional misconduct, subsequently found him guilty of misconduct and recommended that his license be revoked. On an administrative appeal, the Administrative Review Board for Professional Medical Conduct affirmed the Board's determination finding the petitioner guilty of misconduct, sustained the revocation of petitioner's license, and additionally imposed a $10,000 fine against petitioner. Pathak, 677 NYS2d at 182.

The petitioner appealed and the Supreme Court, Appellate Division for the Third Department confirmed the agency's determination. With regard to the petitioner's argument that the imposition of the $10,000 fine was violative of the petitioner's constitutional protection against double jeopardy, the Court stated,

We similarly find no merit to petitioner's constitutional challenge. Although the monetary penalty imposed, together with revocation of petitioner's license, no doubt will serve as a deterrent to others--a traditional goal of criminal punishment--"the mere presence of this purpose is insufficient to render [the] sanction criminal, as deterrence 'may serve civil as well as criminal goals'" (citations omitted). Pathak, 677 NYS2d at 183.

As these cases demonstrate, the Department of State is not prevented from commencing an administrative disciplinary proceeding against a licensee based upon the same conduct which previously resulted in a criminal conviction against the licensee. The licensee's argument that the administrative disciplinary proceeding violates his or her constitutional right against double jeopardy, as adjudged by several courts, will be unavailing.

Updated: February 14, 2020